The current global health pandemic is creating challenges for countless workers’ compensation professionals and interested stakeholders. While members of the claim management team are making changes to their daily lives, attorneys need to understand the barriers that exist form them to be effective advocates. They also need to be creative and patient in putting together best practices within their law firms.
Challenges of COVID-19 and Work Comp Litigation
Attorneys practicing in workers’ compensation litigation are generally a “close bar,” meaning they are smaller in numbers compared to other law practices – family law, personal injury law, etc. All attorneys need to strive to maintain a high level of professionalism in these difficult times. They need to draw on their experiences in the past and maintain a steady course, while at the same time be zealous advocates for their clients to meet daily challenges:
- Court filings: State industrial commissions and labor departments have been moving toward e-filing systems. Notwithstanding the move in the direction of modernization, a significant number of states rely on traditional methods of service and filing via US Mail and facsimile. With fewer people staffing these state offices, filings may be delayed.
- Statutory timelines: Workers’ compensation is a statutory creature that requires the timely filing of countless documents. Attorneys need to ensure their legal assistants and support staff know where documents need to be filed, and by what date. If documents are “fax filed,” it is important to include a cover page with complete and accurate contact information. Always ensure a fax confirmation sheet is saved for future reference in case there is a question.
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- Independent Medical Examinations (IMEs) and other doctor appointments: Telemedicine should be considered and paid for by insurance carriers when an injured employee is trying to receive medical care and treatment. This option allows an injured employee to be seen by their healthcare professional in a safe and timely manner. There may be instances where an in-person visit is required. This is paramount in the case of IMEs where a doctor will need to physically examine the employee. If this is not feasible, opposing counsel should be agreeable to reasonable delays. In other instances, attorneys may want to consider a record review versus an in-person exam.
- Discovery issues: Written discovery can easily be transmitted in a secure manner via email. Flexibility should be given if the applicable rules require service via US Mail. Parties should consider video depositions that can be accomplished by free or inexpensive online platforms. Cybersecurity is paramount, and consultation should occur with an IT professional beforehand.
- In-person hearings: Sometimes, video hearings are not possible. Remember to be safe and observe the recommended guidelines. This can include bringing hand sanitizer, face masks (even cloth masks provide some level of protection), and observe physical distancing guidelines while in the courtroom.
Observe the Three “Ps”
True professionals who are fully engaged will make every effort to observe these three “Ps.”
- Patience: We are all in this together and experience a certain level of stress in our personal and professional lives. These times demand that we all be patient with one another – refuse to irritate; refuse to be irritated.
- Persistence: Never forget to be a zealous advocate for your client. This can be accomplished by using the velvet glove, and not the iron fist.
- Professionalism: The “letter” of the Law should never be forgotten. In the same sense, all attorneys should embrace its “spirit.” This can include taking practical steps such as accepting service via email, exchanging cellphone numbers and holding that information in confidence, and accepting that reasonable delays in some instances are acceptable.
Empathy also goes a long way. Defense attorneys should be counseling their clients on why it is important to avoid frivolous denials. The overall strategy and circumstances should also be a part of the consideration. For example, a diligent job search today might be completely different than two months ago. There are significant barriers in the US economy, given the sudden closure of businesses. This is especially the case in traditional “blue-collar” jobs where employees are required to work at physical locations and not in a home office environment.
Conclusions
There are many challenges that attorneys face in the era of COVID-19 workers’ compensation litigation. Now is the time to identify barriers and seek creative opportunities to overcome challenges. This also includes a chance to be patient, persistent, and strive for true professionalism.
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